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Levies COVID-19

News for Owners Corporations (NSW) Regarding COVID-19 and Levy Recovery.

By Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

Owners Corporations are challenged with balancing its statutory obligations with the rights of owners and occupiers (and the broader community) during this unfortunate pandemic. As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors Gold Coast address three frequently asked questions about current levy recovery procedures.

Whilst Owners Corporations and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Strata Committee’s need to continue making decisions to ensure the obligations of the Owners Corporation are met.

  1. How might a Strata Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Strata Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Strata Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Strata Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Strata Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Strata Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic

OMB Solicitors have implemented several strategies in dealing with levies moving forward. These strategies include:

  1. a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt; NEWS FOR OWNERS CORPORATIONS LEVIES & THE IMPACT OF COVID-19 As at 27 March 2020
  2. providing additional advice to the Strata Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;
  3. increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and
  4. discussing with the Strata Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.
  1. Should the Strata Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

An Owners Corporation is responsible for looking after common property and attending to all repairs. Accordingly, to ensure the Owners Corporation can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there are legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how an Owners Corporation recovers a levy from a lot owner (at this stage). Accordingly, Strata Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

At OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

If you have any questions regarding the above, please do not hesitate to contact our Gold Coast lawyers.

Body Corporate Levies

News for Bodies Corporate (QLD) Regarding COVID-19 and Levy Recovery

By Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

The Queensland Government recently reported that “Bodies Corporate and their committees have a statutory obligation to act reasonably”, which includes balancing the statutory obligations of a Body Corporate with the rights of owners and occupiers (and the broader community). As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors address three frequently asked questions about current levy recovery procedures.

Whilst Bodies Corporate and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Committee’s need to continue making decisions (i.e. by way of VOCM) to ensure the obligations of the Body Corporate are met.

  1. How might a Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic?

OMB Solicitors Gold Coast have implemented several strategies in dealing with levies moving forward. These strategies include:

a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt;

providing additional advice to the Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;

increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and

discussing with the Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.

  1. Should the Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

As advised by the Queensland Government, it was confirmed that a Body Corporate must maintain common property in good condition (including the cleanliness of such common property). Accordingly, to ensure the Body Corporate can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there is legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how a Body Corporate recovers a levy from a lot owner (at this stage). Accordingly, Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB Solicitors has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

Gold Coast lawyers at OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

 

Short Term Letting

Short Term Letting – Body Corporate

By Articles, Body Corporate

The advent of short-term stay platforms such as Airbnb and Stayz have been a boon both for those looking for extra accommodation options in popular locations and those looking to make some extra income from letting out a spare room or granny flat in their residence, or their entire property.

But this evolution of the internet’s ‘gig’ economy has also brought with it some pertinent legal challenges. For example, what are the implications of short-term letting when you own a property within a body corporate?

Bodies corporate are perhaps naturally predisposed to resisting the trend to short-term letting, worried about the overall effect of itinerant people passing through the property, a concern perhaps enhanced by some media horror stories of properties short-term let by people who use them for raucous, all-night parties.

A couple of court decisions in recent years have helped clarify the issue of whether a body corporate can, through its by-laws, ban owners from letting part of their property through a platform such as Airbnb, which we’ll look briefly at in this article.

The case of Hilton Park CTS 27490 v Robertson

In this 2017 Queensland Civil and Administrative Tribunal (QCAT) case, the position of owners within bodies corporate was clarified when the Tribunal ruled that unit owners were legally entitled to offer their units for short-term rentals. QCAT stated that any attempt made by the body corporate to restrict owners from using their property in this way through a by-law or by other means was invalid and was not enforceable.

The decision relied on s 180(3) of Queensland’s Body Corporate and Community Management Act 1997 (“BCCMA Act”), which essentially states that by-laws cannot restrict the type of residential use of the lot if the lot may lawfully be used for residential purposes. In addition to the above, as the term ‘residential’ has not been clarified or defined, it is to be broadly interpreted and so permits any residential use of the lot.

The decision in this case remains the law for properties which fall under the BCCMA Act.

More recently in 2019, the general view of banning short term letting was challenged by the Fairway Island GTP v Redman and Murray decision, where the body corporate successfully banned short-term letting through the use of a by-law.

The case of Fairway Island GTP v Redman and Murray

In this decision handed down in the Queensland Magistrates Court, a Hope Island resort on the Gold Coast successfully relied on one of its by-laws to ban short-term letting through platforms such as Airbnb by its lot owners.

The key difference with the decision in the Hilton Park case of 2017 is that the resort in question in this case remained governed by earlier legislation, the Building Units and Group Titles Act 1980 (Qld) (“BUGTA”), rather than the BCCMA.

Significantly, BUGTA does not place the same statutory restrictions on by-laws as the BCCMA, the latter ensuring that a by-law cannot be oppressive or unreasonable having regard to the interests of all owners or occupiers of lots and the use of the common property.

The implications

The vast majority of Queensland’s 50,000-plus strata schemes are governed by the BCCMA and so the decision in Hilton Park remains the more applicable law. But the decision in Fairway Park has emboldened managers of strata schemes to urge the state government to reconsider the ability of bodies corporate to restrict short-term letting by unit owners.

The Strata Community Association (Qld), for example, which represents more than 1.2 million Queenslanders who live in apartments, units, townhouses and other strata title property, welcomed the Fairway Park decision for restoring the power of the body corporate to make a by-law that “protects community interests”.

Additionally, some legal commentary has suggested that future applications by bodies corporate regarding short-term letting under the BCCMA may rely on the Magistrate’s interpretation of the term ‘residential’ under BUGTA in the Fairway Park decision.

For the majority of owners in Queensland, though, bodies corporate cannot prohibit the letting of your property through platforms such as Airbnb and Stayz through by-laws.

If you are unsure of the status of your property under the current law, and are interested in either undertaking, or preventing, short-term letting within the property, contact our Gold Coast lawyers today. We are experienced, expert legal professionals on all matters relating to body corporate and strata management. Call our body corporate team today on (07) 5555 0000.

Defamation in Strata

Defamation in Strata. What You Need to Know

By Articles, Body Corporate

Anyone who has had dealings with strata management and bodies corporate will know that in worst-case scenarios, they can become minefields of petty politicking and administrative overkill. Often, relations between managers and owners/tenants can become so acrimonious as to lead to legal action between the parties, as a number of high-profile court cases demonstrate.

The focus of this article is on the legal action of defamation, where either tenants/owners or strata managers have sued for statements they believe damage their personal or professional reputation.

It’s helpful to begin with a quick look at what constitutes defamation and what the law does to protect those who believe they’ve been defamed. Defamation is designed to protect people from false or damaging statements being made about them that may cause harm to their personal or professional reputation. A successful action for defamation can provide compensation for financial and other losses resulting from a defamatory publication of any kind.

What constitutes defamatory material? Emails, articles, blogs, novels, poems, photos, songs, cartoons, drawings, paintings, online reviews, social media posts and more can be defamatory. Material that is defamatory can also be broadcast or spoken, i.e. on a TV or radio show, or in a public presentation.

Case example 1

In Walden v Danieletto, a Queensland case decided in 2018, Mr Walden, a lot owner, owed overdue levies to the body corporate. He paid this online the day before a general meeting of the body corporate but because the amount he paid did not exactly match the amount owing, the system operated by the body corporate manager – Mr Danieletto – did not pick up the payment.

As a result, the body corporate manager declared at the general meeting that Mr Walden was “unfinancial”, a finding also entered into the minutes.

Mr Walden took exception to this declaration on four grounds, saying it imputed that he was a delinquent payer; could not afford to pay his body corporate levies; had financial difficulties; and was insolvent.

Mr Walden commenced defamation proceedings against Mr Danieletto claiming his reputation had been damaged to the amount of $100,000. The action failed in the Magistrates Court, the judge finding that Mr Walden had not been defamed and that, even if he had been, the matter was trivial and the defence of qualified privilege (that is, Mr Danieletto’s acts were committed in the performance of a legal or moral duty, were properly exercised and free from malice) applied. The magistrate found there had not been malice on the part of the body corporate manager, he’d just been doing his job.

“Do people hate or ridicule one another about overdue bills?” posited the magistrate in explaining why Mr Walden had not been defamed. “Do these cause people’s estimations of one another to be lowered where neither the amount, the period they are late, or the reason are known? Clearly not. Ordinary people accept that other ordinary people are neither infallible or perfect.”

Mr Walden appealed the decision and again lost, with the District Court judge upholding the original decision and again finding that:

  • Reputational harm could not have occurred because the matter was so trivial.
  • The actions of the body corporate manager were reasonable in giving members of the body corporate information about which they had an interest in receiving.
  • The owner had commenced numerous proceedings against the body corporate and if other owners were poorly disposed towards him, it was more likely to be because of this than anything the body corporate manager did.

Case example 2

In the 2019 NSW case of Murray v Raynor, apartment block tenant Ms Murray won an appeal against a NSW District Court decision finding that she had defamed My Raynor, chair of the block’s strata committee, in an email she sent to fellow tenants in response to Mr Raynor’s emails to her insisting that she lock her mailbox.

Mr Raynor was awarded $120,000 in defamation damages, including an amount for aggravated damages, after the District Court judge found Ms Murray had no defence to Mr Raynor’s claim that her email implied he was a “small-minded busybody”.

However, this matter went on appeal to the NSW Court of Appeal where the original decision was set aside on the basis that a defence of qualified privilege was available to Ms Murray. The court also found the award of aggravated damages to Mr Raynor was “manifestly excessive” for an email that was addressed to 16 other people. The decision has also cast doubt on the statutory cap on damages for non-economic loss in defamation cases where aggravated damages are awarded.

In conclusion

As is clear from the cases cited here, the bar is quite high in order to prove you have suffered reputational damage in the context of strata matters.

Understanding the most common defences to defamation can help you understand whether commencing an action against someone you believe has published or said something defamatory about you is a good place to start. Legal professionals experienced in this area of the law can help explain these defences, which may include that:

  • the publication was an honest opinion, rather than statement of fact;
  • the publication was of public concern or substantially true;
  • the publication was obligatory for a legal, social or moral reason;
  • you are unlikely to have sustained any real harm to your reputation;
  • the person you claim defamed you did not know or ought not to have known that the published material was defamatory;
  • the publication was made in a privileged context (parliament, a court, a tribunal, etc).

OMB Solicitors has specific experience in acting for both clients who have been defamed and also defending clients that have been accused of defamation. We have a good understanding of the alternative dispute resolution requirements contained in Queensland’s Defamation Act, as well as how to progress a matter through the court system if the matter cannot be resolved through mediation.

If you consider that you have been defamed or you find yourself in a situation where someone is alleging that you have defamed them, then OMB Solicitors can help. Contact us today on (07) 5555 0000.

Juliette Nairn Gold Coast Lawyers

What the Draft Body Corporate Regulation Means for Bodies Corporate in Queensland

By Body Corporate, Videos

After nearly six years of consultation, the first of several draft regulations have finally been prepared and the last round of community involvement has commenced. In this video, OMB Solicitors, Partner Juliette Nairn discusses key features of the draft regulations.

A summary of the draft regulations can be accessed here.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Tips Before Renovating Your Unit

Five Top Tips You Need to Know Before Renovating Your Unit or Townhouse

By Articles, Body Corporate

Living in a Body Corporate is unlike owning your own freehold land. As a member of a Body Corporate you are required to follow the rules and regulations applying to your Scheme. Consequently, any maintenance or improvements you wish to make to your unit or townhouse ought to be well thought out and planned to keep the Body Corporate, Committee, owners and occupiers happy – after all it is ‘community living’.

To assist you with dealing with your Body Corporate, we recommend that you implement the following five quick tips in your next project:

  1. Obtaining Body Corporate approval

Be proactive! In almost all cases, you will require Body Corporate approval before ripping out your kitchen or bathroom. Approvals can be sought from the Committee or at a General Meeting depending on the extent of the renovation. If the total renovation cost is under $3,000 and the renovation will not detract from the appearance of the building or will result in a breach of your duties as an owner or occupier (i.e. cause nuisance), then approval can be granted by your Committee.

In the event your unit renovation will exceed $3,000, you will need to submit a motion at the next general meeting where all owners can decide by ordinary resolution to approve the works. It is best to get this step completed early as your general meeting only comes around once a year.

  1. Prepare a Scope of Works

Speak with your Contractors and prepare a summary of the works which are going to be undertaken. Provide the Scope of Works together with your request for Body Corporate approval.

This will save you time when seeking Body Corporate approval i.e. it will avoid the “to-ing and fro-ing” and questions from the Committee.

  1. Check your By-Laws

We like to say “the By-Laws is your Bible” – don’t allow it to collect dust! The By-Laws may identify conditions required to be met in order to undertake the renovation. You can obtain a copy of your By-Laws from your Body Corporate Manager.

It is likely that some of the conditions in which the Committee impose on you to grant approval, will already be contained within the By-Laws (i.e. where Contractors can park, whether padding is required for the elevators etc).

  1. Engage Appropriate Contractors

It is important that you engage the appropriate licensed Contractors to ensure that the works comply with current building standards. It is likely that the renovation will not be approved in circumstances where you are recommending that the works are carried out by a lay person or the classic ‘handy man’.

  1. Communicate, Communicate, Communicate

It is always good practice to keep the Committee or on-site manager informed throughout your project. This is, of course, unless you want a battle on your hands.

It is also prudent to explain to the Contractors the requirements/conditions of the By-Laws in completing renovations at the scheme.

Contact Gold Coast Lawyers for more information.

Elisha Quigg Gold Coast Lawyers

Registered Plans in a Body Corporate & Maintenance

By Body Corporate, Videos
body corporate video

The Difference Between the Two Types of Registered Plans in a Body Corporate and how the obligations of maintenance differ between them.

In this video, Body Corporate Solicitor, Elisha Quigg discusses the differences between a Standard Format Plan and a Building Format Plan in a Body Corporate and how the obligations of maintenance differ between these two types of registered plans.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Tom Robinson

What are the Different Types of General Meeting Resolutions?

By Body Corporate, Videos

In this video, Tom Robinson, Associate at OMB Solicitors within the Body Corporate team talks about the different types of resolutions that may be considered at General Meetings including how they are calculated and when do they apply.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, I’m Tom from OMB Solicitors, I’m an Associate here in our body corporate team and today I thought we’d talk about general meeting resolutions, what are they? Which ones? How many do we have? When do they apply, and also how do we calculate them?

But I also wanted to touch on poll voting as that tends to form part of the types of resolutions that are considered at a general meeting. Now, it may seem like a simple topic, the general meeting resolutions and the types that we have, but I do get quite a few queries from lot owners and committee members about when those types of resolutions apply, but also how they’re appropriately calculated and I guess the reason we tend to get a lot of these queries is when there obviously is a disputed motion.

So how many of these resolutions do we have for a general meeting? Keeping in mind that a general meeting is either your annual general meeting, which must be held once a year, or an extraordinary general meeting which can be called at any time throughout a body corporate’s financial year. There are four types of resolutions for a general meeting.

The first and the most common is an ordinary resolution. The second that we tend to hear about more commonly is a special resolution. Then we have resolutions without dissent, and the most uncommon resolution being a majority resolution.

So starting with an ordinary resolution being our simplest form of resolution, it is our starting place for all general meeting resolutions is put at an AGM or an EGM. Specifically, you start with any motion that goes to a general meeting being an ordinary resolution, unless the legislation specifically states otherwise.

So, an ordinary resolution applies to pretty much anything unless it’s specifically stated otherwise and it’s calculated by determining that there are more yes votes than no votes. So pretty simple, if we use a basic example of 20 people vote on a motion, we need 11 or more votes in favour of the motion for it to pass.

Moving on to resolution without dissent, this is a type of motion that cannot have a single dissenting vote against it. So using our example of 20 people vote on a motion.

Now, extensions don’t apply to any motions, they are not calculated, they are recorded that an owner has decided to not vote on a motion, but they do not go towards yes or no votes, and assuming that all these votes are valid, if we look at a resolution without dissent and 20 people vote on the motion, you’ll need all 20 of those votes to be in favour of the motion.

If you have a single dissenting vote, the motion will fail. So when do our resolutions without dissent apply? Is the most common time is when we are recording the allocations of exclusive use or long term leasing or licensing of areas or the whole of common property.

That disposal of common property will require a resolution without dissent and of course, our legislation specifically states when a resolution without dissent is required for those types of matters.

One important thing to remember about a resolution without dissent is that even if a lot owner is unfinancial, keeping in mind that if an owner is unfinancial, they are restrained from exercising their vote, but on a resolution without dissent, they can actually exercise a vote.

But it’s the only time that they can exercise it whilst they’re unfinancial and only if it is a resolution without dissent. So that moves us on to majority resolutions, sounds very similar to ordinary resolutions, but is actually quite different.

It’s also the most uncommon type of resolution we come across, and it’s really only used in very, very limited circumstances. The most common circumstance that it is used is when a letting agent is transferring its management rights.

Now, that’s not a usual sale or transfer of management rights, but rather when the letting agent is transferring its management rights. That requires a majority resolution at a general meeting. Now, to calculate a majority resolution, it requires at least 50 % of the total number of lots of owners entitled to vote, to vote in favour of the motion.

So sounds pretty confusing when we say it out loud like that. But basically, if we take an example of having 20 owners vote on the motion, we need at least 50 % of the lots to vote in favour of it.

So let’s say the scheme is 20 lots, or let’s say they’re 50 lots actually, let’s say we’ve got a 50 lot scheme, but only 46 lots by way of their owners can vote on the motion, assuming, let’s say in this example, four of those owners are either unfinancial or haven’t submitted their corporate company nominee forms, then you need at least 50 % of the total number of lots entitled to vote being 46.

So in this instance, we’d need more than 50 % of 46 being more than 24 votes in favour of the motion. That is how we determine a majority resolution, now, that doesn’t matter how many dissenting votes there are, even if there are none, you still need to have more than 50 % of the total number of lots.

So the main difference here between a majority resolution and an ordinary resolution is we’re talking about lots in a majority resolution versus the actual votes cast in an ordinary resolution. That now leads us on to special resolutions.

Now, the reason I’ve left this one last is because it is generally the most complicated one to calculate, mostly because there’s three aspects to it, and each of those aspects must be achieved in order for the motion to be passed.

A special resolution is most commonly used when we record a new CMS recording new bylaws. Now, that’s not recording exclusive use bylaws as that requires a resolution without dissent, but just your general day to day bylaws. How do we calculate it? There are three aspects, as I said. We’ll use an example of a hundred lot scheme this time.

The first aspect is you must have two thirds of all votes cast in favour of the motion. The second aspect is you cannot have more than 25 % of the number of lots voting against the motion, and the third aspect is you must not have more than 25 % of the combined contribution lot entitlement of the dissenting votes being more than 25 % of the total contribution and entitlement for the entire scheme.

Now, I’ll explain that through the next example using 100 lots. So looking at the first aspect and our 100 lots example, let’s say 50 votes were cast in the motion. So if another 50 owners didn’t vote, only 50 out of 100 lots voted on the motion. We need two thirds of 50 votes to be cast in favour of the motion, so we need 34 or more votes in favour of the motion.

If we get that, that’s the first aspect ticked. The second aspect is we can’t have more than 25 % of the number of lots. Now, again, we’ve shift from votes cast to lots. So 25 % of 100 lots is 25. So we can’t have more than, in other words, 26 in this example, votes against the motion.

Assuming we don’t get that again and we’ve ticked that requirement, the last one is the contribution requirement. What we need to do is we need to calculate the combined contribution lot entitlements for all dissenting votes, if there are any, and make sure that that total combined contribution of those dissenting votes do not total more than 25 % of the scheme’s contribution total.

As a real basic example, let’s just assume that this 100 lots scheme, all 100 lots have an equal contribution of one. Then again, you couldn’t have more than 26 %… Sorry, 26 contribution lot entitlements totalling the dissenting votes cast against the motion.

So it can be quite a complicated resolution to calculate. I also hear quite a few variations of a special resolution, I hear the 75 % rule and other aspects for three quarter rule, which is actually quite incorrect. So it’s important to know not only how we calculate this motion, but obviously when it also applies.

Those are the four types of resolutions. What also sometimes complicates matters even more is when we’re at a general meeting and someone decides to put their hand up when a motion has failed and they say, I want a poll vote.

So what is a poll vote? When can it apply and how is it exercised and calculated? So a poll vote can only be exercised on an ordinary resolution, so our most common resolution, as long as it is not by secret ballot.

So it has to be an open ballot, ordinary resolution motion, and the person who requests the poll vote must not only be entitled to vote on motions at that meeting, but they must also physically be present at the meeting.

Now, the way that it’s calculated is to whether or not a poll vote will overturn a motion. Use an example, again, of 20 lots, if a motion is defeated because there was 12 no votes versus eight yes votes, if one of the owners who are in the minority being one of the eight owners who voted yes, request a poll.

If the eight owners who voted yes, if their total combined contributions are more than the total combined contributions of the 12 owners who voted no to the motion, then the motion will actually be overturned and deemed passed. So the poll vote can also put a bit more of a spanner in the works when we have our general meetings, especially when we’re dealing with the different types of resolutions.

But if you ever have any questions about your resolutions, when they apply, how they’re calculated, and some of them are complicated, please do not hesitate to contact myself or another member at OMB Solicitors, and we’d be pleased to help.

Cameron Marshall Gold Coast Lawyers

Five Things a Body Corporate Should Know when Entering into a Build Contract

By Body Corporate, Ligitation, Videos

What are five things a Body Corporate should know when entering into a Build Contract?

In this video, Dispute Resolution Senior Solicitor Cameron Marshall talks to us about issues for Bodies Corporate when entering into a contract.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Good morning. Cameron Marshall is my name, I work at OMB Solicitors as a Senior Associate in the Litigation Department. Today, I want to talk about five things from a body corporate’s perspective when entering into a contract for building work to be carried out at a body corporate’s building.

It’s very important when a body corporate is looking to engage a contractor in doing some work is to understand how a contract works. You should see a solicitor, of course, but some basic things that you need to make sure that are covered, I will go through now, they’re pretty simple.

The first one’s the parties, now, the main thing is you need to know who you are contracting with and in Queensland, whether they’re licensed to carry out the work. I’ve seen a lot of cases where builders have engaged in work in contracts, but they haven’t got the appropriate work to carry out such work.

This is very important when you’ve got multi-high rises because only an open builder can carry out such works and a lot of contractors out there may not have that qualifications. If you engage a contractor that doesn’t have the right licence, that could have problems with insurance, et cetera, down the track.

Next thing you need to understand when you’re looking at a contract is what work are you asking to get done? It needs to be set out in the contract clearly so that both you as the committee understand what work your builder is to carry out, and so he understands what is to be carried out, so it should be in fairly simple English, attached as a scope of works to the contract so the parties are aware of what’s going on.

The third thing is insurance, very important for an embodied corporate committee to ensure that insurance is in place. So you ensure that the builder has the appropriate insurances. Naturally, the body corporate will have its own insurance, but you need to make sure that the bill is also appropriately covered.

Now, you’ll need to make sure that they’ve got public liability insurance for both personal injury and property damage, work cover insurance to make sure all their workers are covered, and that should also extend to any subcontractors that they have and the final one is the works insurance.

Now, that affects if there’s any damage to the actual physical works getting carried out whilst the contract is in place.So that’s important that those things are in the contract, a lot of the time they’re not.

The next thing that needs to be covered is payment; when is the body corporate committee supposed to pay the builder? Is it upon demand? Is it upon a certification being provided by the project manager saying that all the work is being carried out in accordance with the contract? Either way, the body corporate committee needs to know when they’re supposed to pay.

So when it comes time to pay, they know that they’re not getting hoodwinked or short sold on work that hasn’t been completed, that will be very important when you report back to your body corporate members, no doubt at the conclusion of the work or if things go over budget.

So there five things that are quite easy to make sure that are in the contract when you’re entering into that stage. But importantly, you should always see a solicitor because they are very complicated documents and also the works can be quite expensive and will hopefully last a long time if they are done correctly and the body corporate is covered appropriately.

The last point that I want to go through is the issue of retention money. Retention monies are monies that are held back from the builder or the contractor to cover any building defects or problems that might arise after the work is being carried out.

Now, this can be done in a number of ways, it can be cash retention from each of the payments that are due to the builder. So the builder would give you an invoice and you would pay less than a certain amount of retention monies which are held back.

Another way is by way of bank guarantee. Either way, I would advise that the body corporate committee should ensure that there is some retention money scheme in the contract, a lot of the time there’s not.

It just provides that extra safety, if there are defects that need to be fixed, at least the body corporate has recourse to some amount of money from retention monies to fix those defects if the builder is not willing to.

Elisha Quigg Gold Coast Lawyers

Five Frequently Asked Questions Regarding Building Management Statements

By Body Corporate, Videos

What are 5 of the most frequently asked questions regarding Building Management Statements?

In this video, Body Corporate Solicitor Elisha Quigg talks to us about the BMS document and what it all means for Body Corporates.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi everyone, my name’s Elisha Quigg (Hodgson), a solicitor at OMB Solicitors. Today I’m going to be talking to you about five frequently asked questions in relation to building management statements.

Now, this topic is particularly relevant for our body corporate managers and our lot owners who pick up this document called a BMS and ask the question, what is this document? So the document is a recording of all of the information and the relationship between the commercial and residential components of a building.

Now, there could also be other components such as retail, which would have separate BMS’s. But what I’m going to be talking about today is the relationship between a building which has both residential and commercial components.

Now, the first question probably is, what is a BMS? So the building management statement is a document which sits over the top of those two schemes, the residential and commercial and what it does is it records the relationship and all the management covenants, which both benefit and burden those schemes.

Now, some of the management covenants include both insurance obligations in respect of the building, services utilities, such as electricity, plumbing, shared facilities such as storage facilities, or even car parking or garages, and any other management of that particular building.

Now, with the BMS, it is important to note at the outset that this document isn’t governed by the Body Corporate and Community Management Act. It’s actually governed by the Land Titles Act. So if you pick up your building management statement, you’ll see on there at the top left hand corner, it will show you that it is registered pursuant to the Land Titles Act.

Now, the BMS is essentially a contract, it’s a contract between the residential component of the building and the commercial component of the building.

Now, there are a lot of management covenants that you need to consider in the BMS, which can be quite particularly onerous for individuals to try and understand and manage, and this is what leads me to the first question is, who manages the BMS?

So the BMS is managed by generally representatives of both the commercial and the residential component of the building. Those representatives have particular guidelines in the BMS in relation to how to raise levies, how to appoint contractors, how to call meetings, and as well as how to resolve any dispute resolution, disputes within that building.

Now, it can be quite onerous for those two individuals to manage the entire scheme on behalf of those two entities. Now, that’s why it leads me to my next question in relation to, can you get any assistance with appointing perhaps a body corporate management company or a building management services to actually assist with that process?

Now, the answer to that question is yes, however, it’s not a particularly straightforward answer. So with the building management group, which is the two representatives appointed from those two schemes, there is no actual ability for those two individuals to go ahead and sign contracts, enter into administrative agreements in their individual capacity and the reason being is that they’re not actually a separate legal entity.

So the building management group is not a separate legal entity that is capable of entering contracts, capable of suing, or capable of being sued. The only way in which a decision to appoint a body corporate management company or a building management company to assist with the management of the BMS is if you get the agreement and you get the stamped, sealed, signed administrative agreement by both the residential and the commercial component.

So all of your agreements need to be agreed to unanimously by the two entities. So this sort of leads me into the next frequently asked question, and that’s in relation to opening a bank account. Now, it’s all well and good for the two representatives of the building management group to trot along down to the bank.

Now, the bank’s going to ask them, okay, so who’s the entity who’s opening up this bank account? They’re going to look at each other and go, oh, can we open it in our name? Well, that’s great, but that means all the funds are going to be going into those individual representatives.

So the way in which the bank account actually needs to be opened, is it will be opened in the name of the Body Corporate for residential and the Body Corporate for Commercial trading as the building management group, because that gives the actual entity being those two individual schemes, the residential and the commercial.

So it isn’t entirely straightforward and it’s important that you can understand that it’s not just the two representatives forming the building management group. It is actually the individual schemes entering into these agreements as well as opening these bank accounts.

Another way that you can get around opening up a bank account is if the building management group, so the representatives of the BMS, come together and make a decision in relation to incorporating the building management group into a separate legal entity.

Now, this can be achieved, but is only recommended in circumstances where you have quite onerous obligations under the building management statement, because there are quite a number of requirements to comply with if you are going to incorporate your building management group into an incorporated association.

So another frequently asked question that we get is in relation to dispute resolution under the BMS. This is quite a complicated issue and as a first point of call, we always tell our body corporate managers or our lot owners to go to the BMS and to read the terms.

If there is a disagreement about, for example, the apportionment of who’s paying for the cleaning of the garage, then simply the first point of call is always to read the overriding document, as that is the contractual agreement between the residential and commercial.

Now, if there is a dispute, there are specific dispute resolution provisions provided for under the BMS. However, it depends on the circumstances of the matter. But in some instances, if there is a dispute, generally what will happen is we will send a notice of dispute and then it will be referred to adjudication.

Now, the parties need to agree on who the adjudicator is, and my opinion is, if they’re already in dispute, how are they going to agree on anything else?So quite, quite often we see circumstances where the matters referred to dispute resolution, but they end up butting heads and they can’t agree on a particular issue and the matters then referred to a court of competent jurisdiction.

So that is just the general process that we see. It is all well and good if you have two representatives that form the building management group, making these decisions and trying to resolve matters amicably.

But quite often what we see, what happened is even if an adjudicator makes the decision, it then has to be enforced and the only court that is able to actually enforce an adjudicator’s decision is in a court competent jurisdiction.

So you might find yourself in either a Supreme Court, District court, Magistrate’s court, depending on the circumstances. But in any event, we always recommend the starting point is read your BMS and try and resolve the dispute and if you’re having any trouble, contact a solicitor to give you some advice and some guidance about how to enforce or how to enforce the BMS, or also how to resolve any disputes involved.

So some of the issues that we’ve discussed today in the frequently asked questions included, well, what is a BMS? Who can manage the BMS? Can you enter into agreements in relation to the BMS? Dispute resolutions and how to deal with that? And also setting up the BMS generally.

Now, there are a whole range of issues in relation to BMS’s, which I won’t go into detail today. But if you do have some specific questions or you have a funny circumstance or there’s some type of interpretation of your BMS you’d like some clarity on, please don’t hesitate to contact our office, we’d be more than pleased to have a quick review and to to give you some advice or some guidance if required.

So if you’d like to contact OMB, please do so, our number is (07) 5555 0000. Thank you.

Elisha Quigg Gold Coast Lawyers

How Should The Body Corporate Deal With Nuisance Communication

By Body Corporate, Videos

What are the steps Bodies Corporates can take to deal with Nuisance Communication

In this video, Body Corporate Solicitor Elisha Quigg talks about a case law to illustrate the issues for Bodies Corporate when facing Nuisance Communication.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hey guys, Elisha here from OMB Solicitors. Today, I’m going to be talking to you about nuisance communication, particularly with respect to the day to day management of a body corporate.

Now, quite often, volunteer committee members and our wonderful body corporate managers come across a nuisance lot owner, there’s a lot of things that you can complain about living in a body corporate; your neighbour’s got the TV up too loud, or the child downstairs is screaming in the hallway.

But there’s a fine line between when that communication and the complaints made to your volunteer committee members and body corporate managers become nuisance in itself. A couple of cases that have been handed down by the Commissioner in the Body Corporate Community Management Commissioner’s office deals particularly with this area.

So I thought, what a good opportunity to have a video podcast today to give you an idea of, what is nuisance communication and how can we deal with it? So with nuisance communication, it’s best to first look at the recent case law.

So there’s a couple of cases which can help us out in identifying what is nuisance communication. The first being Tank Tower, now, that is a little bit of an older case, but it’s quite important.

In that case, there was a lot owner who was sending voluminous amount of material to the body corporate manager and the caretaker, often several emails in a particular day and that communication was not only repetitive but also quite threatening and offensive.

So when we’re thinking about, okay, this communication has come in and it’s becoming quite repetitive, or the tone is not very nice, or it’s quite threatening in nature, have a think about what you might be able to do with that.

Another case is Deagon Village, now, that’s a more recent case. This case in particular, involved a lot owner who was sending, again, voluminous amounts of material to the body corporate manager that was both aggressive, threatening, and really the allegations that were made in that correspondence was quite baseless.

Now, often in that position, you have to think to yourself, well, what can I do about that and how can I deal with this sort of communication? Now, those cases both found that nuisance communication had occurred, and the adjudicator eventually found that certain restrictions would be imposed on that particular lot owner as to that communication.

Now, if you’re in this position and you find that you’ve got a nuisance lot owner that’s consistently harassing you, sending both voluminous, repetitive, and threatening email correspondence or telephone correspondence communications, then these are some of the things that you might need to think about.

Number one, so if you are receiving this type of communication, what can you do about it? Well, there’s a couple of tips and tricks that we recommend that you implement into your own practice as the daily management of a body corporate to ensure that you can deal with this effectively and not to utilise all the resources of the body corporate in dealing with this sort of communication.

Now, firstly, it’s important to note that in the adjudicator’s office, the ability to bring an action against an individual lot owner for nuisance communication can arrive in a couple of ways, and that is either enforcement of a bylaws.

So for example, in Tank Tower, there was a bylaw in there that said that if there was any nuisance communication, then they would essentially be in breach. Now, the body corporate relied upon that bylaw to actually commence an action.

But in that case, the Commissioner also considered the Section 167 of the Body Corporate and Community Management Act in relation to nuisance. Now, the application of that specific section is quite narrow, it basically says that if a lot owner causes nuisance or interferes unreasonably with the use or enjoyment of another lot included in the scheme, or if that nuisance communication was within or lawfully on common property, then they would be found in breach of the legislation.

However, what happens if this communication isn’t occurring in the lot property or common property, but rather, let’s say, an investor from overseas who’s got a property in the scheme. Well, their communication isn’t technically within the scheme, but it is directly related to it.

So in Tank Tower specifically, there was an issue in relation to whether or not that section actually applied. Now, this is where Deagon Village, the new case handed down by the Commissioner’s office is quite important because in Deagon Village, this was a case where there was no body corporate bylaw relating to nuisance.

So essentially the body corporate had to rely upon the provision of Section 167 of the Body Corporate Community Management Act in order to bring an action, and given the communication in that case was between a lotter and who was off site and also a caretaker, well, there was some question about the actual enforceability of that section of the act.

Nevertheless, it’s important that I identify it to you that this case was quite successful because even though the Section 167 wasn’t necessarily applicable in this situation and there was no bylaw, the adjudicator still found that number one, nuisance had occurred, and number two, that to ensure that the resources of the body corporate were being used in a way that would achieve the overall objectives of the legislation.

Then they actually found that restrictions should be imposed upon that lot owner, and these restrictions included things like the minimum word count on an email when communication can be made to the body corporate or their representative and the like, so Deagon Village is a really important authority which can really help us assist our body corporate managers and volunteer lot owners if they come into this situation.

Now, we don’t like going into adjudication if we can avoid it. So here are a couple of tips that can help you in ensuring that you avoid having to go to adjudication, but you can still deal with these nuisance lot owners.

So number one, we would recommend that if it’s not already included in your community management statement, just update your bylaws to include a nuisance bylaw, it just makes the process a lot easier. Number two is implement a communication policy within the body corporate.

If you circulate this communication policy, it’s going to give your lot owners an understanding of how you wish to communicate and what is acceptable or not.

That’s also going to assist us in any future adjudication if we need to go down that step, and of course, in the worst case scenarios, there is an option there by virtue of Deagon Village, that if you do need to take steps further, then you can seek some orders that are made in the adjudicator’s office, the Commissioner’s office.

So there’s a couple of tips to help you with dealing with these lot owners. If you have any questions at all about how to deal with nuisance lot owners, or you would like some assistance with drafting motions or amending bylaws, then we’ll be more than happy to assist you with that process.

I hope you have a wonderful day.

Elisha Quigg Gold Coast Lawyers

New Developments in Body Corporate for Levy Recovery

By Body Corporate, Videos

What are these new developments for Levy Recovery?

In this video, Body Corporate Associate Elisha Quigg talks about legislation as it was applied to a case matter to illustrate the issues for Bodies Corporate when facing Levy Recoveries.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, everyone. My name is Elisha Hodgson, I’m a solicitor here at OMB Solicitors. Today I’m going to talk to you about body corporate levy recovery, and specifically, I’d like to touch on the litigation process and when we institute proceedings, what are the steps that are taken in our process?

The legislation surrounding the recovery of contributions owed to a body corporate is the Body Corporate and Community Management Act and the applicable standard accommodation and small schemes modules applying to that scheme.

The legislation indicates how we can recover contributions, and we need to follow that meticulously in our processes. At OMB Solicitors, we have prepared and we have perfected a process in recovering outstanding contributions owed to a body corporate and I’m going to explain to you how that process works.

When we receive initial instructions from the body corporate, it is usually in the form of instructions requesting a letter of demand to be issued. This is always our first port of call and we always review the matter entirely before we issue that letter of demand.

It’s important to understand who the lot owner is, what their financial status is, and a bit of the background about where they’re currently residing, and any contact that has been made prior to the matter being referred to our office.

Once a letter of demand is issued, we then allow an opportunity for that debt to be paid. If the debt’s not paid, a quick phone call doesn’t go astray, and we also touch base with the body corporate manager and the committee, if need be, to get an indication of whether or not they’ve had any contact with the lot owner.

It’s always our recommendation, though, that if the lot owner does reach out to the body corporate or the body corporate manager when it is gone to legal, that they refer all that correspondence to our office to deal with appropriately.

Once a letter of demand has expired, the next step is a claim and statement of claim. Now, the claim and statement claim is always lodged in the magistrate’s court, which is the court that has jurisdiction to hear the matter.

If the claim and statement of claim is not responded to within 28 days, then a default judgment can be applied and the body corporate can then go ahead and enforce that judgment. Often we find some issues in relation to service, so once a claim and statement claim is filed, we then have to proceed with service.

We’re finding more and more regularly across our desk issues in relation to service, which we either progress to an application for substituted service, where we substitute serving the claim and statement of claim personally by instead doing it by way of another method that will bring it to the attention of the defendant.

So once the claim and statement of claim is filed and served, we can then progress to default judgment, and that is usually how the process works. In the middle, sometimes we get contact from lot owners in which we would try and facilitate payment plans if the circumstances allow for it.

What happens then if we do file a claim and statement of claim, it’s then served on the defendant and we don’t hear from them, but instead we get a defence filed in the proceedings. Well, that’s when it comes across my desk, so defendant levy recovery is a process in which I manage here at OMB Solicitors with the watchful guidance of Juliette Nairn.

In that process, once the defence is filed, the body corporate then has 14 days to file a reply, and essentially what that reply is, it is a document which responds to any new allegations raised in the defence.

Once the reply has been filed, we quickly set the matter down for a compulsory settlement conference in the court to see if we can resolve the matter in a practical sense. Nine times out of 10, the matter is finalised either prior to a final hearing or at the settlement conference stage.

But if it does have to progress forward, there are a number of steps that need to be taken, including disclosure, and then a request for trial date and trial. That is a short snippet of the process in relation to the recovery of contributions from a lot owner and what you can expect in the court resolution process.

If you do have any questions about our processes and how it works and what we’re required to comply with in terms of our rules with the court, please don’t hesitate to ask us any questions that you may have, or if you have any particularly difficult matters.

For example, you can’t arrange for service or you’re having trouble contacting the defendant or you don’t know where they are, we’re very good at locating those defendants and trying to resolve the matter in a commercial manner with the most minimum cost to the body corporate.

Tom Robinson

What Does It Mean When We Are Talking About Management Rights?

By Body Corporate, Videos

What are Body Corporate Assignments & Variations of Management Rights?

In this video, Body Corporate Associate Tom Robinson talks about Assignments & Variations of Management Rights and what it means to ‘vary and ‘assign’ them.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, I’m Tom Robinson from OMB Solicitors, I’m an Associate here, and today we’re going to talk about assignments and variations of management rights. I thought a good starting point would be identify exactly what we’re talking about when we talk about management rights.

Specifically, when we mention management rights, we think of them as a bit of a package deal. So, usually, management rights consist of a caretaking agreement, a lending agreement, and then also a caretaker’s law. Now, an assignment or variation of those management rights essentially happens when a request comes through from usually the current caretaker.

Starting with assignments, the legislation framework deals with how assignments can occur and the rights are behind that with respect to a caretaker being able to assign those rights, and essentially that’s exactly what it is, it’s a transfer of the ownership of the management rights from one or the current caretaker to a proposed purchaser.

So there’s normally three parties involved in that transaction; the body corporate, the current care taker being the seller, the proposed new care taker being the purchaser. What usually occurs in the first instance is the caretaker solicitors, so the seller, will send a covering letter to the body corporate, which will enclose certain documents.

That request will be a formal request for the body corporate to consider giving its consent to that transaction. That consent can’t be unreasonably withheld by the body corporate, but the body corporate can certainly have consideration to a number of of factors.

What usually comes behind that letter is also a deed of assignment, a motion, and then some resumes and references. Once that comes across, it’s important for the body corporate to consider getting its own independent legal advice.

The reason this is so important is not only because the caretaker and the seller or the purchaser are both represented by their own independent lawyers. The documents are therefore drafted by those lawyers and they’re legally binding on the body corporate, but also because the cost associated with the body corporate considering an assignment transaction are actually paid for by the outgoing caretaker.

So there’s no real reason why a body corporate would not get legal advice to ensure that what they’re voting on and the terms of that deed of assignment are in the best interests of all owners. So taking that into consideration, those documents have come across, the body corporate’s got their lawyers engage in the due diligence process starts.

Part of that process will usually be obtaining further information. Such documents might include police checks, bankruptcy searches, letting licences, and any amendments to the terms of that deed of assignment.

Now, the reason that’s so important is to make sure that the body corporate, when it’s going to determine that motion to consent to the assignment, they have all that information that they believe they reasonably need.

That can also include, obviously, an interview occurring. An interview can occur between the committee and the proposed purchaser, but it can also be done by an independent facilities management company, and that’s a decision for the committee to make.

On that point, it’s always important to remember, in an assignment matter, the committee can make the decision on behalf of all owners, they don’t have to, it can actually go to a general meeting, but it’s very common for a committee to make that decision because it’s quite easy, they can do it, and they normally get all the information they need.

Now, once that process has gone through, all the information is received, they’ve had an interview, the committee is happy and there’s no concerns, then the next step is preparing for settlement, and that starts with the consideration of the motion. So the committee will then determine that motion subject to it being resolved.

Then, the deeds and so forth will then be prepared and the committee can execute those deeds. They’ll then go through a process of stamping, settlement will be scheduled and the body corporate will obviously ask for either the caretaker’s solicitors or the purchaser’s solicitors to act as their own paid agent, and then settlement will occur.

At that time, checks will be drawn and provided to the body corporate along with a signed deed, and that’s your assignment transaction in a very simple nutshell. The main difference between though an assignment and then a variation is that the variation is obviously that varying the rights and the terms of the agreements themselves.

When we think about these variation matters, similar process as where they start is the same as the assignment matters, whereby a request by the current caretaker will come across and that will include the covering letter, a deed of variation, and a motion.

There might be some other documents provided as well, depending on what is required for that specific type of variation. But again, the transaction is only going to be between the current caretaker and the body corporate. So there’s only the two parties in this instance and the body corporate is requested to consider entering into that deed of variation.

That motion must be put to a general meeting, though, so it’s considered a lot owner’s motion. So one thing to always check is whether or not the motion is submitted by the caretaker, if they are a lot owner, or if they’re not a lot owner, who is the lot owner that’s submitting that motion?

Once that motion is put forward, it must be put to the general meeting and it will ultimately be determined by the owners. The deed of variation can be an important time for a body corporate to consider any other amendments, and that is obviously going to be a negotiation with the caretaker and of course, that means both parties need to agree.

Ultimately, if the motions put by the caretaker, it will be put in the form that it’s submitted and the owners will determine that motion. The important thing to remember is obviously in these transactions, when that advice or that initial letter comes across to the body corporate, the body corporate should consider getting its independent legal advice.

The reason that’s so important is, again, this is a legally binding document that’s drafted by the caretaker solicitors and the body corporate has a responsibility to obviously act reasonably and act in the best interests of all owners.

So costs and the variation are a little bit different to assignments, there’s no requirement for those costs to be paid by the caretaker, but it’s common that they are.

At the end of the day, it’s a relatively small fee for a body corporate to get that independent legal advice to make sure that the motion, the deed of variation, that anything else that is circulated with those documents are appropriate and valid.

So if the motion is resolved, then the body corporate is obliged to enter into those documents. Same sort of situation, the general meeting will occur, the motion will be voted on, and then ultimately the body corporate will be obliged to enter into that deed of variation if the motion is resolved and that would be the end of a variation matter, and that simply forms part of a historical document for the management rights.

Quite a lot to take into consideration with respect to variations and assignments, obviously, two different types of transactions, but very common.

They can occur simultaneously at the same time and they can occur separately. OMB solicitors, obviously, we deal a lot with these types of transactions, we act exclusively for bodies corporates. So if you are going through one of these processes at the moment, please do not hesitate to give us a call.

Tom Robinson

Body Corporate Insurance – Workers Compensation Related

By Body Corporate, Videos

What are some of the issue facing the Body Corporate in regards to Insurance – Workers Compensation Related?

In this video, Body Corporate Associate Tom Robinson talks about these insurance-related issues when Body Corporate Committees are dealing with caretaking arrangements.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Translate

Hi, I’m Tom from OMB Solicitors, I’m an Associate in our OMB Solicitors body corporate team and today I thought we’d have a bit of a discussion about body corporate insurance.

Specifically, though, I’d like to focus on workers compensation insurance or work cover and volunteers workers insurance or voluntary workers insurance. The reason I wanted to bring up these two types of insurances is because we’ve had a few queries from some committees recently about the types of caretaking that they’re now undertaking at their schemes.

Now, the reason we’re talking about different types of caretaking is because we’re starting to see a lot of our long term management rights agreements come to an end. Now, these are the long term agreements that the developers entered into originally when they were the original owner on behalf of the body corporate 20, 30, 40, 50 years ago, and now they’re starting to come to an end.

So our body corporate is in the position especially with our smaller schemes, where they have an opportunity to explore other types of caretaking arrangements. So what we’re starting to see is a lot of these smaller sized schemes are developing and exploring these alternative options for caretaking of their body’s corporate common property.

Now, the reason this is coming about is, like I say, because a lot of these longer term agreements are coming to an end. But what they’re exploring is your shorter term engagements, some of them of which are actually on up to only a month to month basis.

So what this results in is your individual people like your Joe blogs down the road who’s coming in to maintain certain areas of common property. That’s how this comes into your workers compensation insurance, your work cover, and your voluntary workers insurance.

Now, the reason we’re bringing these insurances up is because when we look at our work cover insurance, which is under our Workers Compensation and Rehabilitation Act, is basically if you engage a person under a contract of service to do anything, then work cover insurance is required.

Now, whilst it’s usually only applicable to employees, it’s not necessarily a be all and end all in the sense that you can still include subcontractors and contractors in that arrangement depending on the specific type of engagement that is there.

Now, the reason I mentioned that is because a lot of our contractors, especially on a shorter term basis, might be under an individual and under an ABM, and in that instance, work cover insurance will need to be taken out, it won’t apply to your companies or organisations, hence why this is mostly applicable to our smaller schemes.

But what that does is essentially if someone comes onto the body corporate’s common property and performs work under a contract of service, the body corporate’s common property becomes a workplace and with that, we need to make sure the body corporate is protected in case there is an accident or injury or anything like that that happens on site.

That’s what the workers compensation or work cover insurance will protect the body corporate from. So the starting point is contact our insurer, contacting our insurer or our insurance broker and identifying, do we have workers’ compensation insurance in place? And if not, asking for a quotation for that amount of cover, which is usually a pretty nominal fee.

So there is no reason why a body corporate shouldn’t be looking at getting workers compensation insurance. Our advice is find out if you’ve got it, if you haven’t got it, get it unless you have a very good reason why you don’t need it. Now, what that leads into is then our voluntary workers insurance.

So voluntary workers insurance is a little bit different. It’s basically to protect the body corporate from anyone who attends on our common property and performs work or tasks that are of voluntary nature.

So that might be our keen activist lot owners who like to go out on site, do a bit of gardening, maintain the pool, change a light bulb in the stairwell, and things like that where we’re not asking them to do it and they’re not getting paid to do it, it’s completely voluntary.

But of course, that may set the body corporate up for liability for injury or worse if that person happened to injure themselves on the common property.

Now, voluntary workers insurance is usually included with the body corporate schemes insurance, but I have seen instances where it’s not, so it’s very important to contact our insurer again or our broker and make sure that we have that as an absolute minimum insurance in place.

Again, it’s normally just chucked in as part of your insurance policy, unless it was specifically requested not to be in there, which would be quite strange, then it should be included. But if it’s not, again, having it included, there shouldn’t be a situation where we don’t have voluntary workers insurance.

It’s a very nominal fee to have it included, like I say, it’s normally just part of your policy anyway, starting point, contact your insurer here and find out whether or not we have that insurance.

So I guess just in summary about these two types of insurances is with especially our smaller schemes where they might be employing or contracting individuals, or you’ve got committee members or owners who are quite keen to maintain areas of the common property, we have those appropriate insurances in place and that they’re sufficient to protect our scheme and our body corporate.

So as a starting point, contacting our insurer, finding out whether or not we have those insurances in place and if we do, if we don’t, sorry, why haven’t we is the question we need to ask and basically getting it and only not having it if there is a sufficient reason as to why.

Your broker should be happy with that if we obviously have brokers available, if you do have any questions about your insurance, of course, though, you can contact OMB Solicitors.

We’d be happy to have a look at those policies and let you know and provide your advice as to whether or not you have those insurances in place and guide you to the right areas to make sure that we have those insurances.

Tom Robinson

Body Corporate Questions By-Law Questions We Are Often Asked About

By Body Corporate, Videos

What are some of the By-Law Body Corporate Questions we get asked?

In this video, Body Corporate Associate Tom Robinson addresses some of the questions we are asked regarding Body Corporate By-Laws.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, I’m Tom from the OMB Solicitors team here, and I’m an Associate in our Body Corporate team. Today, we were going to talk about bylaws and also the five frequently asked bylaws that we deal with.

Later on in the video, I’ll also be supported by Annaka Faulkner, who’s a paralegal in our Body Corporate team, to go through those questions. But I thought before we get started, we’d also look at a bit of the history of where we find our bylaws and why bylaws are so important.

Our current legislation is the Body Corporate and Community Management Act, otherwise known as the BCCMA. It came into effect in 1997, as part of that legislation change, it was a requirement that all bodies corporates in Queensland, registered or recorded with Queensland land titles a new Community Management Statement.

Now that CMS is the one and all document that is to include all information of a body corporate that’s generally required at any time, being the specific details of the lots of the body corporate, the survey plans, if there’s an exclusive use plans attached, contribution and interest schedule lot entitlements, but also, most importantly, our bylaws.

Before that, we were regulated under another legislation which is known as a BUGT or Building Units and Group Titles Act, where it didn’t really have community management statements, which means when we transitioned to our current legislation.

There was a three year interval that bodies corporates in Queensland, being every body corporate, was required to record this new CMS, and if they didn’t do that within three years, so by the year 2000, then the Queensland Land Titles Office would record a standard or default CMS.

That default CMS is only about a page long, doesn’t include a lot of information and has limitations with respect to the actual bylaws that are applicable to the schemes. But whereas those CMSs that we record since that time in the appropriate forms include your bylaws and are usually valid and forcible under the legislation.

When we have to look at those standards, one page CMSs, usually to actually be able to identify those bylaws, we have to do a number of searches, including a historical title search and then identifying if there have been any change of bylaws.

This can be quite a timely, long and costly process because there can be up to 10 or 20 of these change of bylaws documents, and even then, if we do all those searches and we piece together all of those bylaws, it can still be a matter of missing documents and things like that being the time that has passed.

So it’s very important for a body of corporate to check to see what is their current registered CMS, and then if we need to record a new one and move away from that default one page CMS, that is a priority for the body of corporate.

So we have that nice and new compliant one and all document of a new community management statement. So with all that information in mind, we thought we’d now discuss the five frequently asked questions that we come across in our working day to day basis.

One of the most common questions that comes across my desk and in our office is to do with the short term letting increase that we have in Queensland, specifically, Airbnb. What we usually come across is, are owners allowed to use their lot for a short term accommodation purpose? Or or can a body corporate restrict that?

The short answer to the body corporate’s question is no. A body corporate cannot restrict an owner renting or letting their lot on a short term basis. So the answer to the owner is yes, they can do that and they can operate their lot through Airbnb.

There are obviously council requirements that owners must ensure that they comply with when they go through a short term accommodation process. But that doesn’t mean the body corporate doesn’t have any ability to regulate the use of someone using their lot through Airbnb.

Specifically, what a body corporate might look at doing is putting bylaws in place that take into account the increase in nuisance or noise or use of recreational facilities in the body corporate due to that increase in short term letting.

Another question that comes across my desk quite often from owners and committees and body corp managers is how do we regulate alterations to lots and or common property?

Dealing with the common property aspect first, depending on the way the scheme is subdivided, we usually have two types of subdivisions in Queensland, being a building format plan of subdivision or a standard format plan of subdivision.

Under a building format plan or BFP, generally speaking the alterations to common property, which is generally the whole exterior of the building or buildings, is regulated under the legislation.

What we can look at regulating in the bylaws is just a bit of a replication of what’s in the legislation and taking it a little bit further to make sure that the aesthetics and the appearance of the scheme do not change without getting the appropriate consent required under a body corporate.

When we deal with lot renovations, that’s when it becomes a bit more specific, and again, dealing with it from a building format plan subdivided scheme, that’s the buildings and the bodies corporates that generally have more impact from lot renovations.

Specifically, your BFPS are more your townhouses that share joint walls or your high rises that have ceilings and floors that are obviously dividing lots. So, renovations to floor types, so hardwood flooring is always going to be an issue in terms of acoustic levels.

So as part of that, your bylaws are where you need to look at regulating how those types of renovations can occur. For example, dealing with hardwood flooring, you might need to get acoustic reports from the owner and so forth, certificates of certification, and all those matters can be included in the bylaws itself.

When we look at the legislation, it’s very limited in what it requires for any alterations to lot property. Rather, it only regulates that an owner must keep it in a clean and tighter condition. When we look at your standard floor plan lots, they are different from the perspective of usually the aesthetics or the exterior of the scheme is actually the lot owner’s responsibility.

So, they’re responsible for painting, replacing their roofs and all those matters because it’s contained within their surveyed lot area. From a bylaw perspective that, that exterior of the lot is an alteration to lot property and again is covered from that perspective of making sure that we don’t have a bunch of multi-coloured lots within our bodies corporate.

What I might do now is hand you over to Annaka Faulkner, who’s one of our paralegals, to talk about the other types of frequently asked bylaws that come across our desk in our office.

Hi, I’m Annaka Faulkner, and I’m one of the paralegals here in the body corporate team. One of the frequently asked questions that we get here at OMB Solicitors in relation to bylaws is whether a body corporate can legally tow a vehicle that has been parked illegally on common property.

The answer is yes, but under certain circumstances. The body corporate must obtain an order from an adjudicator in relation to towing. If you do not have an order from an adjudicator, you will not be able to tow the vehicle, your CMS needs to include a towing bylaw, which the adjudicator may rely upon when seeking an order in relation to towing.

Another frequently asked question that I get in relation to bylaws is regarding pets and how body corporate can regulate owners keeping pets within their lots. So a body corporate can regulate them through their CMS.

So the bylaws cannot be prohibitory in relation to pets, but they can set out specific conditions that lot owners must comply with in order to keep a pet inside their lot. Another frequently asked question that I get in relation to bylaws is communications.

We get a lot of questions in relation to owners sending copious amounts of correspondence, whether it’s to committee members, whether it’s to body corporate managers. A lot of them, they might send 10, 20, 30 bits of correspondence daily, weekly, so they are ways that you can regulate this.

You can regulate owners sending correspondence via your community management statement again, you have to make sure that you have a nuisance by law and a correspondence by law, which sets out certain conditions that owners can comply with in relation to sending in correspondence. In the instance that a owner breaches these bylaws, then you can issue contravention notices.

Those are our five frequently asked questions about bylaws that have been coming across our desks at the moment. But stay tuned for further podcasts and articles which will deal with how do we create enforceable bylaws that are not prohibitory or oppressive or unreasonable and valid and enforceable under our legislation.

But if you have any questions in the meantime, please do not hesitate to contact myself, Tom or Annaka from our office, and we’d be happy to assist you with any needs regarding your CMS and your bylaws. Thank you.

Tom Robinson

Roles And Responsibilities of Body Corporate Committees?

By Body Corporate, Videos

What are the Roles & Responsibilities of Body Corporate Committees?

In this video, Body Corporate Associate Tom Robinson talks about the Roles & Responsibilities of Body Corporate Committees and the sometimes onerous tasks involved.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, I’m Tom Robinson from OMB Solicitors, I’m Associate here and I work in the Body Corporate team and today we’re going to have a chat about the roles and responsibilities of committees and what is the onerous side of that type of role.

I thought the best way to get started was to have a quick look at how a committee is made, created, and appointed, and essentially, the starting point is that a committee can consist of up to seven members. Of that seven members, you’ll have an executive component committee and then also your ordinary members component of that committee.

The executive members are essentially your chairperson, secretary, treasurer. With that role, there’s not really any more responsibility, power, or authority than any of your ordinary members of the committee.

Rather, they have some additional tasks that they do take on, which mostly, with most of the bodies corporates, are delegated in one sense to a body corp manager, and the purpose of that is your body corp manager is engage to take on that administrative role.

So when those executive members don’t have those tasks, your body corp manager takes care of them. They’re essentially the same as any other member on your committee that can be up to seven.

When your committee is elected, it’s done at an annual general meeting each year. The important thing to remember is that you’re only realistically got a one year term on your committee, which is a good thing to remember and then you will be either reelected, reappointed, or there will be a new committee that will come on, so that’s done every year.

Once we have a formed committee, which is done at each annual general meeting, essentially that role of the committee is to look after that day to day administrative management and operation of the body corporate, and essentially what that means is to make and implement the decisions of a body corporate.

A committee has a number of power to make certain types of decisions, and with that, there are also decisions that they can’t make. Some of those restricted decisions will be decisions like you can’t affect the rights or responsibilities of owners.

You can’t change the levies, and of course, any motions or decisions that require a general meeting resolution, whether it’s ordinary special resolution without dissent, they must be at a general meeting and the committee can’t make them.

Some of the other decisions that a body corporate can make, which are quite voluminous, they all have to be done with a basis of reasonableness, and the reason they have to be a reasonable decision is because they are bound by a code of conduct, and that code of conduct basically says that a committee must act fairly, honestly, with confidentiality, and most importantly, in the best interests of all the owners and the reason that’s so important is because a committee can make a decision without any input from owners.

Rather, the only notification that owners will get is minutes and those minutes will come from the committee meeting or the voting outside of committee meeting, and I guess the important part to remember there is that if a committee makes a decision, it must be minuted and they must hold a formal meeting.

There’s no such thing as informal meetings and the reason that’s so important is because it does bind the body corporate and a lot owners have a right to know what the decisions are that a committee are making. So with all that in mind, that’s essentially their role, it’s that day to day management and operation of a body corporate.

But what’s the onerous side of it? What are the risks associated with being on a committee? There are some. There are some, there are some risks, despite the fact that there is obviously Office Bearer’s liability for our committees, which is through the body corporate’s insurance policy.

But essentially, before we go into that type of risk, one of the most common things we’re seeing that’s coming through is with respect to communication. Lot owners can be a bit picky with members and their decisions because they don’t have, in most instances, a right.

So they can be bombarded, those members this can be bombarded and targeted and attacked by a lot of correspondence coming in from what we call a minority group of nuisance owners.

But the flip side of that is obviously, if a committee is communicating with owners, it has to be very careful that if it’s in the minutes, explanatory notes, or even chairman’s letters and those other types of communications.

That there isn’t any false misleading defamatory statements that are made because that can potentially set up a claim against the body corporate, and that ties back into why a committee must act reasonably because that decision is one that is by the body of corporate.

The other aspect that we tend to find is, like I say, there are risks associated with committee members making decisions, and when we talk about that, we like to think of the committee members as a group of volunteer laypersons. So in other words, they shouldn’t try to take on the roles and put on other hats like the roles of accountants, lawyers, engineers, project managers.

Those roles should be best left to those parties, and even if a member on the committee is one of those, it avoids that conflict of interest, which can occur and we don’t want to see that happen.

The reason being is the committee’s scope is rather limited in what they can and can’t do and if they go outside of that scope, whilst there is that protection of Office Bearer’s liability insurance, there are decisions out there where if a committee member does seem to go what we call rogue, then they potentially could be personally liable and not protected under that policy as an exclusion.

They’re probably the main onerous parts of being on a committee and the risk to be mindful of. Essentially, as long as a committee makes reasonable decisions and they stay within their scope and engage the appropriate experts, they will be well and truly protected, and realistically, it can be a bit of fun, and I guess to sum it all up, if you’re not on a committee and you’re part of a body of corporate, have a go.

There’s no requirement to be on the committee and certainly there’s no requirement to stay on the committee. It’s quite easy to resign if you want and at best it’s only for one year term. But otherwise, that’s probably the best part of those those roles and responsibilities.

So we do also come across those situations whereby committee members do get themselves in those situations where they need to engage those appropriate experts and get that advice, and obviously OMB Solicitors, we can provide a lot of that advice to those committees.

Whether it’s assisting with drafting the type of correspondence to go out, reviewing the minutes, especially if there are topical and competitive topics that are going to be put to the owners, whereby there might be an influx of correspondence coming in, then we can certainly review those types of documents.

We can assist with the engagement of other experts that need to be. But that also includes that we can have that relationship with your body corp managers who take on part of those roles and responsibilities of your committees and give just any of that general advice to assist a committee with its decision making authority and power, including making sure that they stay within their spending limits, making sure that they don’t hit any of those restricted issues, and assisting them with even attending at the committee meetings and general meetings to provide that type of advice.

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What You Need to Know About the New Cladding Laws in Queensland

By Articles, Body Corporate

In 2018 this resulted in the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) coming into effect on 1 October 2018. The legislation and it’s operation is a data collection strategy which will recognise and evaluate the risks involved with cladding products on privately owned buildings in the state of Queensland.

There are a number of obligations under the legislation in which building owners (i.e. Bodies Corporate) need to be aware. These obligations and timeframes are outlined below.

Stages and obligations

Stage 1: Buildings must be registered if they are located in the ‘compliance zone’. A building is considered to be in the compliance zone if:

  • It is any of classes 2 to 9 (this includes residential and commercial buildings, excluding houses); and
  • between the period from 1 January 1994 but prior to 1 October 2018, a building development approval was issued to build the building or alter the cladding;
  • is of Type A or B construction (three storey buildings or taller).

A checklist can be found through the Queensland Building and Construction Commission (QBCC) website and will help to determine whether the building is one of those with non-conforming cladding. A time limit of 29 March 2019 was set for building owners to complete this checklist. If after registration it is identified that the building has a rendered surface finish or combustible cladding or you are unsure of the building materials, you will be directed to complete Stage 2.

Stage 2: Before 29 May 2019, a statement will be required from a building industry professional as to whether the cladding on the building is non-conforming. If you know for a fact that the building has non-conforming cladding, you can simply notify the QBCC directly and by-pass Stage 2.

Stage 3: Before 27 August 2019, buildings which are found to have combustible cladding, building owners must engage a qualified fire engineer to undertake a fire risk assessment to determine the overall fire safety of the building and whether rectification works are needed. The QBCC requires the name of the specific fire engineer by the above date and by 3 May 2021, the QBCC must have received the final report. If you fail to follow these rules, the consequences include a total range of 50 and 165 penalty units, amounting to around $6,527.50 and $21,540.75 in fines.

Obligation to disclose

If a building has non-conforming cladding, it does not necessarily have to be removed if other fire safety mechanisms adequately cover the fire safety requirement. However, the risk that it could still be considered a defect is an issue. A building with non-conforming cladding must be disclosed to interested buyers of the property as a defect they should be aware of. This should be done via providing a copy of the status of compliance with the process outlined above to every owner and tenant of the building, as well as be put on view in a visible area of the building. In the instance that non-conforming cladding is not disclosed, the situation might result in litigation for non-disclosure against all those involved with the selling of the building, including the sellers themselves, the sales agents and the lawyers involved with preparing the contracts for sale.

If an owner of building with non-conforming cladding sells the building prior to completing the above steps, it is required that before the settlement, the current owner provides copies of all relevant documents to the buyer, as well as a notice containing information about the extent to which the seller has complied with the obligations required. The seller must also provide a copy of the notice given to the buyer to the QBCC. From then on, the new owner will take on the responsibility to conform with the remaining regulations.

If you have any questions in relation to the obligations of the Body Caporate or the building owner to comply with this legislation, please do not hesitate to contact our Gold Coast lawyers.  

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Common Body Corporate Questions Answered

By Body Corporate, Podcasts

In this podcast, OMB Solicitors Partner, Juliette Nairn answers some commonly asked questions by bodies corporate.

Answers Some Commonly Asked Questions by Bodies Corporate

Dan: The first question we have here is, in the event that an owner is requiring a copy of the body corporate roll, does the body corporate have to release all the information or just their name and address, or is there a privacy issue that might apply in this circumstance?

Juliette: Dan that is a great question. It is a question, which we often get, whether it’s from a lot owner, committee members or a body corporate manager. When I’m a lot owner and I write in and put my information on the body corporate roll or sometimes it’s called, The Strata Roll, all of that information is capable of being disclosed to anyone who pays the application fee to get that information. So if I’m a lot owner or a potential purchaser, the privacy rules don’t apply with respect to that information.

Juliette: So if I have my full name, my personal home address, a PO Box address, an email address or any other information like a mobile phone number, then all of that information must be disclosed as part of the body corporate roll. There’s actually quite a number of adjudicator’s decisions from the Commissioner’s Office which deal with exactly that point because people don’t want their mobile numbers being disclosed.

Juliette: It’s important at an early stage, if you’re a lot owner who doesn’t want that information to be disclosed, then you just put the minimal amount of information on so it’s included on the Strata Roll in that way.

Dan:  Tremendous. Okay. Next question, which at sort of first blush might seem fairly remedial but I’m assuming also a commonly asked question and that is, can a body corporate charge GST on any fees payable to them?

Juliette: You would think that, that is actually quite an easy or straightforward question but the answer can be quite complicated depending on the size of your body corporate as well. The starting point is, there are some fees that are actually contained in the regulation. So for example, like we were talking about the body corporate roll before, if I’m a lot owner and I would like a copy of the body corporate roll, my only obligation and all that the body corporate can charge me is the photocopying fee for that body corporate roll because I’ve asked for a copy of that document.

Juliette: If I’m in a small Strata scheme that only has six lots, then it may not fall within that component of having a GST and that GST service fee charged to it. The majority of the body corporate fees actually don’t have a GST component but if you are in a very large body corporate such as Q1, then you might find that there may be GST component payable and it also depends sometimes on whether the lots an investment property and how the lot is structured.

Juliette: So the question can actually become quite complicated … well the answer can actually become quite complicated when we talk about GST and normally we refer those types of questions to our accountants depending on the individual lot owner but the general answer is, most body corporate fees do not have a GST component.

Dan: Now the next question which I’m assuming is relatively common and that is, how should body’s corporate respond to tenants who contact them about breaches of bylaws and maintenance issues?

Juliette: Dan that’s a really interesting question as well because particularly from a committee member or a body corporate manager’s point of view, there was always a view held that unless you’re an actual lot owner within the body corporate, you’re not entitled to receive information about the body corporate. That view has been around for a long, long time but it’s actually an incorrect view.

Juliette: As a tenant, I’m considered an occupier within a Strata scheme within a body corporate, and as an occupier all the bylaws apply to me and all the rules and regulations apply to me as well. So if I would like information from a body corporate, then I have a right as a tenant being an occupier to call a committee member or go through the normal communication channels to obtain that information.

Dan:  Okay the next question is, the body corporate committee wants to call an emergency general meeting, now can it conduct what’s called the EGM by a postal vote?

Juliette:  In most circumstances we only have on,e general meeting of a body corporate and it’s called, Our Annual General Meeting, and that’s the meeting where the majority of the lot owners go to because they’re going to vote on the next financial year of the body corporate. What amount of money do we need to raise for a budget, are we going to paint the building, what levies are going to paid during the year, all those normal body corporate questions that occur during a financial year of a body corporate.

Juliette: However, sometimes an emergency arises and an emergency might be a hole in one of the body corporate roofs, a water penetration issue, a burst pipe, electricity, so a failure of a utility of the structure, those sorts of issues and we may not have enough money in the body corporate to be able to pay to fix that type of problem. Normally what would happen is, we would get quotes together on behalf of a body corporate or the body corporate committee would go out and seek those quotes from different contractors and then motions would need to be put forward and the committee would request the holding of an extraordinary general meeting.

Juliette:  An extraordinary general meeting is required to give 21 days notice. So it’s 21 days formal notice, plus usually add on another seven days for a postal rule. So normally 28 days is the total amount of notice a lot owner needs before we can hold an emergency or extraordinary general meeting. However, usually what we would do is we’d hold the physical meeting and everyone would turn up and you’d vote yes, no or abstain to the motions. In certain circumstances, if you are able to satisfy the rules and the regulations, that meeting can actually be held by what we call the postal way.

Juliette: So basically by email to make it more instantaneous so that the decision is happening faster in an emergency circumstance. You need to show that you can satisfy those requirements in the regulations. So there really does need to be a sense of urgency or an individual lot owner can actually make a complaint about that to a dispute resolution procedure, which is called our Commissioner’s Office. So yes, there is an ability in certain circumstances to hold that type of general meeting by way of what we call a postal vote.

Dan:  Okay. Next question is, now can an un-financial owner submit a motion for a general meeting or be a part of a request for an extraordinary general meeting or emergency general meeting?

Juliette:  See that’s actually a bit of tricky question that one and we’ve had quite a few adjudicator’s decisions handed down with respect to that. The normal rule that applies is if I’m a lot owner and I fail to pay my levies, so my contributions that are issued usually on, maybe two or three or four times a year, then I’m actually not entitled to propose a motion or go to a general meeting and vote at a general meeting and those types of things.

Juliette:  However, in certain circumstances that normal rule doesn’t apply and one of those circumstances is when the motion being proposed at the general meeting is actually a resolution without dissent. So what that means is there can’t be a, no vote. So if I have 20 lot owners, and as a result of those 20 lot owners let’s say 10 of them turn up to the meeting, and out of that 10, 9 vote yes but one votes no. That means that, that resolution would fail because we’ve had one no vote.

Juliette:  Even if I haven’t paid my levies, if there is a resolution that’s been put forward as resolution without dissent, then I’m entitled to vote at that particular motion because they’re the type of motions that are very poignant in this scheme. Like it might be the termination of the Strata scheme or those type of issues. So there are circumstances where, if I haven’t paid my levies, I am actually entitled to cast a vote or put forward a motion.

Dan:  Great. Now I’m assuming that there’s probably lots of body’s corporate out there that have gone lots of other questions that they’d like to ask, how do they best get those questions answered?

Juliette: A great way to do it, and what we’ve found here Gold Coast Lawyers at OMB Solicitors is we have obviously a specialised page on our website for body corporate and there’s an inquiry form. So if you make inquiry through our website at OMB Solicitors or either telephone us direct if you’d like to put just your question in writing, that’s no problem and just contact through the website and within 24 hours we’ll get back to you and have a chat with you or either talk to you through … we can email you back and provide you with the answers to any questions that you have and that’s for lot owners, body corporate managers or committee members.

Dan:  Tremendous. Thanks Juliette.

Juliette:  Thank you Dan.

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